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1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

----oo0oo----

JAMIE LYNN MARTINEZ,

NO. CIV. S-04-0718 WBS JFM

Plaintiff, 

v. MEMORANDUM AND ORDER

 

MONO COUNTY; MONO COUNTY 

HEALTH AND HUMAN SERVICES;

EASTERN SIERRA PASSAGES LODGE;

THOMAS WALLACE; RICHARD

JOHNSON; PHILLIP RICH; SAMUEL

MATA; KIMBERLY NELSON; DOUGLAS

BAIN; and Does 1 to 30,

Defendants.

----oo0oo----

Plaintiff brought this action alleging a deprivation of

her constitutional rights in violation of 42 U.S.C. § 1983 and

various state law causes of action based on a nonconsensual

sexual encounter. Defendants move for summary judgment, pursuant

to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff

filed no opposition to the motion, nor has plaintiff filed any

motion for a continuance, and plaintiff’s counsel has failed to

provide the court with a plausible excuse for his failure to

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“Although a district court may not grant summary 1

judgment simply because the nonmoving party does not file an

opposition, a district court may grant summary judgment when the

moving papers are sufficient on their face and show that no

genuine issues of material fact exist.” Henry v. Gill Indus.,

Inc., 983 F.2d 943, 950 (9th Cir. 1993). 

Rich has not joined in the motion currently before the 2

court. Rich was an on-site manager of the ESPL program until

shortly before his death in 2004. (Defs.’ Mot. for Summ. Judg. 2

(citing Wallace Decl. ¶ 8).) In light of his death, the court

ruled that no answer on Rich’s behalf would be due until 20 days

following notice of entry of an order allowing amendment of the

complaint to substitute a representative as a defendant. (Dec.

12, 2004 Order 2.) To date, plaintiff’s counsel has not filed a

motion to amend the complaint.

2

respond.1

I. Factual and Procedural Background

On or about March 28, 2004, plaintiff Jamie Martinez 

presented herself for treatment of alcohol and drug addiction to

defendant Eastern Sierra Passages Lodge (“ESPL”). (Compl. ¶ 14.) 

ESPL is licensed by defendants Mono County and Wallace and

operated by defendants Mono County Health and Human Services,

Wallace, Rich, Mata, Nelson, and Bain. (Id.) Johnson was the

Public Health Officer for Mono County from July 2, 2002 to April

8, 2005. (Johnson Decl. ¶ 3.) Wallace ran ESPL throughout its

existence; Mata, Nelson, and Bain were, at various times,

counselors at ESPL in his employ. (Id. ¶ 3.) 2

Plaintiff had ceased using alcohol and methamphetamine

a week before she enrolled in ESPL’s treatment program. (Defs.’

Mot. for Sum. Judg. Ex. B (Martinez Dep.) at 27-28.) A few weeks

after her arrival at ESPL, plaintiff alleges in her complaint

that Mata “unlawfully made sexual contact with her” and raped her

on or about April 20, 2003. 

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3

On April 9, 2004, plaintiff filed a claim against

defendants alleging federal and state claims. Plaintiff amended

her complaint twice. In her second amended complaint, filed on

August 2, 2004, plaintiff alleges the following nine claims: (1)

violation of 42 U.S.C. § 1983; (2) assault and battery; (3)

invasion of privacy by public disclosure of private facts; (4)

negligent hiring; (5) libel; (6) libel per se; (7) libel on its

face by imputation of immoral conduct; (8) intentional infliction

of emotional distress per se; and (9) intentional infliction of

emotional distress. 

II. Discussion

Summary judgment is warranted “if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(c). A material fact is one that could affect the outcome of

the suit, and a genuine issue is one that could permit a

reasonable jury to enter a verdict in the non-moving party’s

favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). 

The party moving for summary judgment bears the initial

burden of establishing the absence of a genuine issue of material

fact and can satisfy this burden by presenting evidence that

negates an essential element of the non-moving party’s case. 

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Any

inferences drawn from the underlying facts must, however, be

viewed in the light most favorable to the party opposing the

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4

motion. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,

475 U.S. 574, 587 (1986). In addition, the court must not engage

in credibility determinations or weigh the evidence, for these

are jury functions. Anderson, 477 U.S. at 255.

A. Federal Claim under 42 U.S.C. § 1983

Plaintiff alleges that defendants deprived her of her

civil rights in violation of 42 U.S.C. § 1983. The primary

deprivation alleged is that Mata, acting under color of his

authority as a counselor (see compl. ¶ 3), unlawfully engaged in

sexual contact with plaintiff. Several circuits, including the

Ninth, have held that “a claim that a state actor coerced a

citizen into having non-consensual sex could rise to the level of

a due process violation.” Rogers v. City of Little Rock, 152

F.3d 790, 793, 797 (8th Cir. 1998) (emphasis added) (upholding a

district court’s finding that a police officer had engaged in

nonconsensual sex with the plaintiff and was therefore subject to

liability under § 1983); see also Wudtke v. Davel, 128 F.3d 1057,

1059, 1063 (7th Cir. 1997) (finding a claim that a school

superintendent coerced a teacher working under his supervision to

engage in a sexual act was cognizable as a violation of the

teacher’s due process rights under § 1983); Dang Vang v. Vang

Xiong X. Toyed, 944 F.2d 476, 479-80 (9th Cir. 1991) (upholding a

district court verdict finding liability under § 1983 when

defendant employee of State Employment Office relied on the

pretext of helping immigrant women find employment opportunities

in order to rape them).

The burden to show every element of an alleged

violation of civil rights under § 1983 is on the plaintiff. 

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5

Lyons v. Williams, 91 F.3d 1308, 1311 (9th Cir. 1996) (“[W]here

[an] alleged rape was the centerpiece of a claimed violation of

civil rights, it was the burden of the plaintiff to prove every

element of the alleged violation.”) More specifically, in a case

involving an allegation of rape, “[w]hat the plaintiff has to

show is intercourse against her will or without her consent. The

burden is hers.” Id. at 1311. 

The encounter described by plaintiff does not rise to

the level of a constitutional violation because the

uncontroverted evidence indicates that it was consensual. By

plaintiff’s own testimony, plaintiff and Mata, a drug and alcohol

counselor, began a physical relationship involving flirting,

kissing, and touching. (Defs.’ Mot. Summ. Judg. Ex. B at 39-41.) 

At one point, Mata told plaintiff he was sexually attracted to

her, and she responded that she was attracted to him as well. 

(Id. at 40.) While on a trip to see lava tubes on April 26,

2003, Mata kissed plaintiff and asked her to meet him ESPL’s

main office later that night. (Id. at 39, 41-42, 46, 49.) 

Plaintiff has admitted that she knew that Mata’s request was

motivated by his desire to engage in sexual activity, and she

agreed to meet him because she also wanted to “do something

sexual.” (Id. at 42.) Plaintiff met Mata at the office at 11

o’clock that evening, and they engaged in sexual intercourse. 

(Id. at 49-51.) Plaintiff conceded that the intercourse was what

she wanted to happen. (Id.) She has also stated that there was

not anything the two of them did that she did not want to do at

the time. (Id. at 126.) 

In her complaint, plaintiff claims that she was not in

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In addition, to the extent that plaintiff bases her § 3

1983 claim on rights that are grounded in the Eighth Amendment or

in state law, she has not stated a cognizable claim. See

Ingraham v. Wright, 430 U.S. 651, 671 n.40 (1977) (holding that

the Eighth Amendment applies only to criminal punishments imposed

6

an emotional or psychological “frame of mind” to be able to

consent to intercourse. (Compl. ¶ 6.) However, plaintiff

admitted in her deposition that she quit using methamphetamine

before she entered the program (Defs.’ Mot. for Summ. Judg. Ex. B

at 58), she was not having delusions or hallucinations at the

time she was in rehabilitation (id. at 59), and she had quit

using alcohol a few weeks prior to the incident (id. at 60). 

Thus, the undisputed facts show no basis for plaintiff’s claim

that she was unable to consent other than her allegation to that

effect. Plaintiff cannot simply fall back on the pleadings to

survive this motion for summary judgment. See Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 256-57 (1986). 

Thus, because plaintiff testified that the encounter

was consensual, and because she failed to identify other

impairments to her ability to consent, this court cannot find

that a due process violation occurred. See Rogers, 152 F.3d at

797 (noting that the court would find for defendant if he could

show that consensual sex, and not rape, had taken place); Hawkins

v. Holloway, 316 F.3d 777, 785 (8th Cir. 2003) (explaining that §

1983 does not provide a remedy for every sexual encounter). 

Therefore, defendants have negated an essential element of

plaintiff’s case, Celotex, 477 U.S. at 322-23, and there is no

genuine issue of material fact that a constitutional deprivation

occurred under § 1983. 

3

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pursuant to “a formal adjudication of guilt”); Wood v. Ostrander,

879 F.2d 583 (9th Cir. 1989) (holding that, to sustain an action

under § 1983, a plaintiff must show she was deprived of a federal

constitutional or statutory right).

 

7

Moreover, even if plaintiff had established that the

sexual encounter was nonconsensual, the fact remains that it did

not take place under color of law. “It is clear that acting

under ‘color’ of law means under ‘pretense’ of law.” Screws v.

United States, 325 U.S. 91, 111 (1945). A person acts under the

pretense of law “when he abuses the position given to him by the

state.” Dang Vang v. Vang Xiong X. Toyed, 944 F.2d 476, 479

(quoting West v. Atkins, 487 U.S. 42, 49 (1988)). More

particularly, to come under color of state law, acts “must be

performed while the officer is acting, purporting, or pretending

to act in the performance of his or her official duties.” McDade

v. West, 223 F.3d 1135, 1140 (9th Cir. 2000). 

Plaintiff has alleged that Mata was a county employee

acting under color of his authority at the time he allegedly

sexually assaulted her. (See Compl. ¶¶ 3, 6, 15.) Plaintiff

knew that sex between clients and staff members was a violation

of house rules, and did not tell anyone that she was going to

meet Mata after hours because she thought that “someone would get

mad,” and she “knew it was wrong.” (Id. at 43, 46-47.) Thus,

plaintiff’s description of the encounter does not indicate that

it occurred under color of state law – plaintiff voluntarily met

Mata in an office after hours, knowing that what they were doing

was proscribed by the rules of the program, and Mata was clearly

not acting under his authority as a counselor or pretending to do

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Because the facts before the court indicate that 4

plaintiff has not experienced a constitutional deprivation, the

municipal defendants (Mono County, Mono County Health and Human

Services, and ESPL) cannot be subject to liability under § 1983

for a deprivation of plaintiff’s constitutional rights caused by

a municipal policy. See Monell v. Dept. of Soc. Servs., 436 U.S.

658, 692 (1978) (concluding that municipal liability is based

upon the government causing an employee to violate another’s

constitutional rights under color of an official policy)

(citation omitted). Therefore, the court concludes that summary

judgment should be granted in favor of the municipal defendants

as well.

The municipal defendants, Mono County, Mono County

Health and Human Services, and ESPL, also have not been shown to

have effected a constitutional deprivation under § 1983. 

8

so in order to influence plaintiff to meet him. Therefore, the

encounter between plaintiff and Mata did not occur under color of

law. 

Given the evidence before the court, there are no

genuine issues of material fact as to whether plaintiff

experienced a constitutional deprivation under § 1983 and whether

this alleged deprivation occurred under color of state law.

Summary judgment on plaintiff’s sole federal claim is therefore

warranted as to all defendants. 

4

B. Remaining State Law Claims

A district court may sua sponte determine whether to

exercise supplemental jurisdiction over state law claims. 

Ballard v. Equifax Check Servs., Inc., 186 F.R.D. 589, 599 (E.D.

Cal. 1999); see also Acri v. Varian Assocs., Inc., 114 F.3d 999,

1000 (9th Cir. 1997) (“[A] federal district court with power to

hear state law claims has discretion to keep, or decline to keep,

them under the conditions set out in § 1367(c).”).

Section 1367(c)(3) allows a district court to decline

to exercise supplemental jurisdiction over a state law claim if

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“the district court has dismissed all claims over which it has

original jurisdiction . . . .” 28 U.S.C. § 1367(c)(3). In this

case, the only federal law claim over which the court had

original jurisdiction was the § 1983 claim. Consequently,

pursuant to 28 U.S.C. § 1367(c)(3), the court declines to

exercise supplemental jurisdiction over plaintiff’s remaining

state law claims.

 IT IS THEREFORE ORDERED that defendants’ motion for

summary judgment as to the first cause of action under 42 U.S.C.

§ 1983, be and the same hereby is, GRANTED. It is FURTHER

ORDERED that plaintiff’s remaining state law claims be, and the

same hereby are, DISMISSED WITHOUT PREJUDICE pursuant to 28

U.S.C. § 1367(c)(3). 

DATED: January 25, 2006

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